Equal pay for jobs the performance of which requires equal skill, effort, and responsibility

Equal pay for jobs the performance of which requires equal skill, effort, and responsibility
Belfi v Long Island Railroad, 2nd Cir., 191 F.3d 129

The Equal Pay Act [EPA] prohibits employers from discriminating among employees on the basis of gender by paying higher wages to employees of the opposite sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions [29 USC. Section 206(d)(1)].” Title VII bars discrimination on the basis of gender.

The Second Circuit U.S. Court of Appeals in New York commenced its review of Susan Belfi’s appeal of the summary dismissal of her Title VII and EPA complaints by a federal district court judge by commenting:

On this appeal we deal with an employer long on salary policies, but short on reasons justifying their application to a female employee whose salary for the same work was less than those of her male peers.

Belfi, originally employed by the Long Island Railroad [LIRR] in 1973 as a steno-typist, was promoted to the position of Office Engineer-Communications on a temporary basis in November 1989. Her salary: the minimum salary for that position, $39,508. On January 1, 1990 the minimum salary was increased to $40,691 but Belfi’s salary was not adjusted to this new, higher “minimum salary” rate.

On July 16, 1990, Belfi was permanently appointed Office Engineer-Signal in the Signal Department at $40,691 per year while the salaries of her two male peers -- the Office Engineer-Communications and the Office Engineer-Electric Traction -- were set at $52,794 and $53,046 respectively.*

By 1993, Belfi’s salary was increased to $44,857 while one co-worker’s salary was increased to $57,240. The other co-worker’s salary was not increased “because of his anticipated retirement.” On June 15, 1994, LIRR hired Gary Barnett to replace the retired Office Engineer-Electric Traction at a salary of $51,249, $6,000 more than Belfi’s salary and $8,931 more than the minimum for the position.

Belfi became aware of the salary differences in October 1992 and filed a number of grievances. LIRR offered a number of reasons to explain away these salary disparities, including:

1. The “time spent in the position by each of the incumbents” was the reason for the differences.

2. The 1986 transition of the office engineer positions to the Salary Plan, caused the disparity.

3. It was necessary to pay Barnett $51,249 to induce him to accept the position because “[i]n order to attract union employees to management, LIRR has found it necessary to consider W-2 earnings, which include overtime, in applying the ten percent (10%) promotional increase in accordance with its policy.”

Eventually LIRR consented to bringing Belfi’s salary up to Barnett’s retroactive to January 1, 1995. Still, Belfi’s salary from June 15, 1994 through December 31, 1994 was significantly less than Barnett’s.

The Circuit Court of Appeals emphasized that the EPA does not require the complainant to prove that the employer intended to discriminate in order to prevail.

Accordingly, a prima facie showing of the salary disparities was based on gender gives rise to a presumption of discrimination. If the plaintiff makes out a prima facie case under the EPA, the burden of persuasion shifts to the employer to show that the wage disparity is justified by one or more of the affirmative defenses allowed under the Act:

1. a seniority system;

2. a merit system;

3. a system which measures earnings by quantity or quality of production; or

4. a differential based on any other factor other than sex and that there is a legitimate business reason for implementing the gender-neutral factor that brought about the wage differential.

Once the employer offers one or more of these “affirmative defenses,” the burden of going forward shifts back to the employee, who must show that the reason given by the employer is, in fact, a pretext for unlawful discrimination in order to prevail.

The Circuit Court rejected LIRR’s combination of two affirmative defenses: seniority and factors other than sex, as justification for the differential between the salaries of Belfi and her male counterparts. Rather, it said, it was persuaded that these justifications were a pretext, as the evidence showed that its salary plan allows for an inequity increase under two circumstances:

1. where the employee’s salary is low in comparison with peers as a result of restructuring, reorganization, or job consolidation; or

2. where the promotion of a represented employee to a management position may have resulted in his or her earning a salary greater than that of a seasoned incumbent.

Accordingly, the Circuit Court concluded, there exist genuine issues of material fact regarding pretext sufficient to preclude the summary dismissal of Belfi’s EPA claims. It returned the case to the lower court for its further consideration of these claims.

The Circuit Court, however, affirmed the lower court’s summarily dismissing Belfi’s Title VII complaint.

* The salary range for these three “Office Engineer” positions was determined using the “Hay Method.” The Hay Method assigns a “point value” to a position based on the skills and talents needed to perform the job. A minimum, midpoint, and maximum salary for the position is then set. The decision notes that three positions had the same “Hay point value.”
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Filing for accidental disability retirement

Filing for accidental disability retirement
Sukup v McCall, App. Div., Third Dept., 264 AD2d 921

The Sukup case illustrates the importance of filing a timely application for accidental disability retirement benefits. Simply put, if the individual, or his or her representative, fails to file the application in time, the application for such benefits will be rejected. However, critical to such a determination is that the applicant knew that he or she was actually terminated from employment.

Broome County landfill employee Richard Sukup sustained a work-related accident in June 1994. Placed on Workers’ Compensation Leave pursuant to Section 71 of the Civil Service Law, the County terminated his employment after a three-month extension of his one-year leave of absence expired on September 24, 1995.*

In February 1997, Sukup filed for accidental disability retirement benefits. His application was rejected as untimely.

Sukup, however, denied receiving any notice that his employment had been terminated or that his leave had expired. As the Appellate Division pointed out, there was no direct evidence that the County notified him of the termination of his employment.

Clearly, Retirement and Social Security Law Section 605(b)(2) provides that an application for disability retirement benefits must be submitted within 12 months after an employee is advised that his or her employment status had been terminated.

The Comptroller concluded that the two identical letters concerning COBRA benefits that the County sent to Sukup in 1995 indicating that his employment was placed on “non-payroll status” effective June 24, 1994 constituted notice “of the termination of his employment no later than October 1, 1995.”**

However, a notice of “non-payroll status” could simply mean that the individual has been placed on “leave without pay” rather than he or she is “terminated.”

In this instance the Appellate Division concluded there was significant confusion as to whether Sukup received any notice that his employment had been terminated. For example, although the COBRA application form relied upon by the Comptroller lists a number of possible reasons for a change of enrollment, including termination, none of the boxes is checked and no “reason” was indicated on the form.

Also, although the “Employee Final Clearance Form,” which is to be completed upon an employee’s separation from employment, signed by Sukup was date-stamped “September 25, 1995,” it was apparently actually signed by Sukup and five other County employees, including Sukup’s supervisor, on either August 16 or August 19, 1996.

Because of “the ambiguity, confusion and uncertainty created by the notices to Sukup advising him that he had been placed on “non-payroll status” and, more importantly, the “Employee Final Clearance Form” dated in August 1996, the court deemed Sukup’s February 1997 application for disability retirement was timely.

This ruling demonstrates the importance of the employer making certain that an individual on leave without pay is given complete and accurate information concerning his or her status as an employee.

* For the purposes of Section 71, an employee may be terminated after being absent on workers’ compensation leave for a cumulative period of one year. In Duncan v NYS Developmental Center, 63 NY2d 128, the Court of Appeals specifically considered “termination” under Section 71 and ruled that it was permitted.

** COBRA requires that employees who are covered by an employment-related health care plan are to be given the opportunity to elect continuation of such coverage after some qualifying event, including termination of employment [29 USC Section 1161].
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Past practices and the Taylor Law

Past practices and the Taylor Law
Walden PBA v PERB, 263 AD2d 885

The Walden PBA filed an improper practice charge with PERB claiming that the Village of Walden had failed to negotiate in good faith in violation of Section 209-a(1)(d) of the Civil Service Law.

The PBA said that the Walden “unilaterally discontinued certain fringe benefits previously provided to police officers that were on General Municipal Law Section 207-c leave due to injury or illness incurred in the performance of their duties.” It was conceded that the “terminated benefits had previously been provided by the village pursuant to a long-standing past practice.”

The village argued that the “PBA had contractually waived the requirement of collective bargaining as to all past practices,” including the terminated benefits. Walden pointed to what the Appellate Division characterized as the “following unqualified language” in support of its position: “All past practices may be continued at the Village’s discretion.”

Reversing its Administrative Law Judge’s ruling, PERB concluded that the PBA had waived the Village’s obligation to negotiate changes in past practices. As a result, the PBA filed an Article 78 proceeding seeking to annul PERB’s determination.

Although a State Supreme Court justice overturned PERB’s determination, finding that it was not reasonable or rational, the Appellate Division reversed, holding that PERB’s determination represents a rational, supportable interpretation of the parties’ collective bargaining agreement.

In sustaining PERB’s ruling, the Appellate Division pointed out the following key elements:

1. A public employer commits an improper practice by unilaterally changing noncontractual practices concerning existing terms and conditions of employment.

2. An employee organization may release a public employer of its statutory duty to negotiate changes in mandatorily negotiable past practices.

3. A bargained-for waiver satisfies the employer’s bargaining obligation under the Taylor Law.

According to the decision, the parties themselves agreed that the PBA effected a collective bargaining waiver. The dispute centered on the question of whether “PBA waived the Village’s obligation to negotiate changes in ‘[a]ll past practices’” -- the village’s position, ... or “merely waived all past practices pertaining to grievance procedures” -- the PBA position.

The Appellate Division said that “this dispute poses questions involving the interpretation of a collective bargaining agreement which are within PERB’s area of expertise.” Accordingly, PERB’s interpretation is entitled to substantial deference and should be upheld if it is rational, reasonable, legally permissible and is supported by the text of the agreement.

Finding that PERB’s ruling satisfied all three tests, the court upheld PERB’s interpretation of the collective bargaining agreement, commenting that the Board's interpretation was neither arbitrary nor capricious.
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Court approves county personnel officer’s payroll decertification of individuals not employed in accordance with the Civil Service Law

Court approves county personnel officer’s payroll decertification of individuals not employed in accordance with the Civil Service Law
North Greenbush v Director of Personnel, Supreme Court, [Not selected for publication in the Official Reports]

Section 100 of the Civil Service Law requires the responsible civil service commission to periodically certify the payroll of all of the public entities under its jurisdiction.

The responsible commission is required to examine the agency’s payroll at least once each year “to determine that all persons employed in such department, agency or authority are employed in accordance with law.” Section 101 of the Civil Service Law makes it a misdemeanor to pay an individual whom the responsible commission has refused to certify on the payroll.

On May 24, 1999, Rensselaer County Bureau of Personnel Director Christian K. Mahoney wrote to the Town of North Greenbush setting “52 conditions” that the Town had to meet in order for its payroll to be certified. The Town complied with 45 of these conditions. It, however, challenged Mahoney’s determination that seven police officers employed by the Town were not eligible to remain on the payroll.

According to Justice James B. Canfield’s decision, “these issues [involving the police officers] have been simmering for years in some cases.” He noted that North Greenbush and the affected police officers “merely ignored them” until the May 24, 1999 letter rather than “promptly challenge them administratively.”

Essentially, said the court, North Greenbush “failed to demonstrate that it was in compliance [with the Civil Service Law] or that either it or the officers pursued their administrative remedies prior to May 24, 1999.”

Ruling that North Greenbush failed to meet it burden of proving that Mahoney’s efforts “to enforce the civil service law by refusing to certify the payroll at this time is arbitrary, capricious or illegal,” Justice Canfield dismissed its petition.
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Appointing authority has discretion to reject a former employee's request seeking reinstatement to his or her former position

Appointing authority has discretion to reject a former employee's request seeking reinstatement to his or her former position
Silberzweig v Doherty, 2010 NY Slip Op 06709, Decided on September 28, 2010, Appellate Division, First Department

Matthew Silberzweig, a sanitation worker with the New York City Department of Sanitation [DOS] was terminated after he had failed to contact DOS concerning his being absent from work without approval. The reason for the absence: Silberzweig had been arrested.

After he had been acquitted of the charges filed against him, Silberzweig asked DOS to reinstate him to his former position. When DOS denied his request, Silberzweig sued and won a Supreme Court order vacating and annulling the Commissioner’s decision rejecting his application for reinstatement.

The Appellate Division unanimously reversed the lower court’s ruling “on the law.”

The court said that considering Silberzweig’s “prior disciplinary record and his poor performance review,” the Commissioner’s denial of Silberzweig's request for reinstatement after the criminal charges against him were dismissed "was rational, lawful and a provident exercise of discretion.”

Further, said the Appellate Division, the record did not conclusively establish that DOS had a policy of automatically reinstating former employees who were acquitted of all criminal charges against them.

Significantly, the court noted that under Personnel Rules and Regulations of the City of New York Department of Citywide Administrative Services an agency head has the discretion to determine whether or not to reinstate a person who was dismissed from a permanent competitive position in the agency and “nothing in Civil Service Law §75 or the Administrative Code of the City of New York § 16-106 says otherwise.”

The Appellate Division also noted that Supreme Court “improperly relied on an Unemployment Insurance Appeal Board [UIAB] finding, since the finding was not part of the administrative record but was simply attached [Silberzweig’s] reply memorandum of law in this Article 78 proceeding."

Further, said the court, a finding by the UIAB “lacks preclusive effect in a subsequent action or proceeding,” citing Labor Law §623[2] and Matter of Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], leave to appeal denied 14 NY3d 704.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06709.htm
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